Springhetti v. Hahnewald

Decision Date03 March 1913
Citation54 Colo. 383,131 P. 266
PartiesSPRINGHETTI et al. v. HAHNEWALD et al.
CourtColorado Supreme Court

Rehearing Denied April 7, 1913.

Error to District Court, Lake County; Charles Cavender, Judge.

Action by Albert Hahnewald and another against Louis Springhetti and another. There was a judgment for plaintiffs, and defendants bring error. Affirmed.

R. D. McLeod and James T. Hogan, both of Leadville, and Barnett & Teller, of Denver, for plaintiffs in error.

John A Ewing, of Denver, for defendants in error.

GABBERT J.

Defendants in error, plaintiffs below, brought an action against plaintiffs in error, as defendants, to recover sums of money which, it was charged, had been obtained from them by fraud and willful deceit on the part of the defendants, and also to cancel all indebtedness or claims of indebtedness against the plaintiffs in favor of the defendants growing out of the same transaction. At the time this suit was instituted there was another action pending by Springhetti against Albert Hahnewald on a $3,000 note, which had been given by Hahnewald to Springhetti in connection with the above transaction, and it was agreed that that suit should abide the result of the trial of this action. The case was tried before the court, and the issues made by the pleadings found in favor of the plaintiffs, and a finding made that in committing the wrongs complained of in the complaint the defendants were guilty of malice, fraud, and willful deceit and procured from the plaintiffs the sum of $5,333.33 by means thereof. Judgment was rendered accordingly, which provided that, if the amount which the plaintiffs were adjudged to recover from the defendants was not paid within 30 days from the date the judgment was rendered, then plaintiffs might have an execution against the bodies of the defendants under which they could be committed to jail for a term of 1 year, unless the judgment was sooner paid. The defendants bring the case here for review on error.

The complaint alleged that plaintiff Albert Hahnewald and defendant Louis Springhetti were the owners of an undivided one-half interest each in a lease upon the Chautauqua lode mining claim; that at the same time the defendant Julius Muller was the owner of an option to purchase an undivided sixtenths interest in this claim from the owner, by virtue of which Muller was entitled to purchase such interest within a time specified for the sum of $2,400; that defendant Springhetti and plaintiff Paul Hahnewald were engaged in making preparations to work the property under their lease and that during this time prospecting was done in a shaft thereon, and workings connected therewith, and that this prospecting was done by one Louis Beati, who took orders from the defendant Springhetti, neither of the plaintiffs having any control or direction over such work in any way; that defendants for the purpose of inducing these plaintiffs to purchase from Springhetti his one-half interest in the lease, and the option held by Muller, falsely represented to the plaintiffs that in the workings in which Beati was prospecting great values in minerals were disclosed, and for the purpose of consummating such fraud caused material to be taken from these workings with which they mixed gold and silver in such manner that assays of such material showed high values; that for the purpose of deceiving and defrauding these plaintiffs they further falsely represented to them that in workings on the premises there was a large quantity of high grade ore which had been hidden and covered up by material which had fallen from the roof, and also falsely represented to the plaintiffs that defendant Muller and other persons associated with him had paid the sum of $10,000 in cash for the half interest of Springhetti in the lease; that in truth and in fact the material taken from the premises and assayed was of no value whatever, until the same had been so mixed with gold and silver that an assay thereof would disclose great values; that plaintiffs believed the representations made to them by the defendants in regard to the presence of valuable ore in the mine, and the sale of Springhetti's interest in the lease, and, relying upon these representations, they purchased from Muller a two-thirds interest in the lease, and also a two-thirds interest in the option to purchase held by Muller, paying therefor the sum of $6,999.99, and agreed to pay the further sum of $3,000, for which they executed their note. The complaint then alleges that prior to the commencement of the action, and as soon as they discovered the fraud which had been practiced upon them, the plaintiffs notified the defendants that, upon the return of the sum of money which they had paid, they would convey to the defendants the interest in the lode mining claim which they had acquired in the lease and the purchase of the option, and by apt statements in the complaint tendered and offered to assign these interests. The plaintiffs prayed judgment against the defendants for the amount they had paid, and for a judgment canceling all indebtedness, or claim of indebtedness, against them in favor of the defendants growing out of the transaction, and for a finding, decree, and judgment of the court that the defendants were guilty of malice, fraud, and willful deceit in the statements and representations made by them in procuring such sums of money, and that upon such finding, judgment, and order the plaintiffs have an execution as provided in the statutes of the state of Colorado against the bodies of the defendants, under which they might be committed to jail under writ of execution against their bodies, as provided by law.

To this complaint the defendants demurred upon the ground that there was a misjoinder of plaintiffs, and also upon the ground that the complaint did not state facts sufficient to constitute a cause of action. This demurrer was overruled. After this ruling the defendants answered. Counsel for defendants contend the demurrer should have been sustained. The objection to overruling the demurrer for misjoinder of parties plaintiff is not available to the defendants upon this review. By answering and going to trial upon the merits they waived the right to question the ruling upon the demurrer for alleged misjoinder. Sams Automatic Car Coupler Co. v. League, 25 Colo. 129, 54 P. 642; Diamond Rubber Co. v. Harryman, 41 Colo....

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6 cases
  • United States v. Limbs
    • United States
    • U.S. District Court — District of Arizona
    • March 8, 1973
    ...of action grew out of the tort, or, as the statute has it, was founded upon tort." (Emphasis supplied.) See also Springhetti v. Hahnewald, 54 Colo. 383, 131 P. 266, 268 (1913): "`Founded upon' means the bottom, or foundation, on which something rests or relies; so that, in speaking of an ac......
  • Moe v. Lowry
    • United States
    • Colorado Supreme Court
    • December 6, 1920
    ...its discretion on this point, and therefore this was no error. The misjoinder, if there was one, was waived by answer. Springhetti v. Hahnewald, 54 Colo. 383, 131 P. 266, and other cases in this court. The judgment should be affirmed. SCOTT, BAILEY, and TELLER, JJ., dissent. TELLER, J. (dis......
  • Fuller v. Stapp
    • United States
    • Colorado Supreme Court
    • November 5, 1917
    ... ... 287, 291, 134 P ... 107; Halfelfinger v. Perry, 52 Colo. 444, 447, 121 P. 1021; ... Lambert v. Scott, 53 Colo. 355, 357, 127 P. 142; Springhetti ... v. Hahnewald, 54 Colo. 383, 390, 131 P. 266; Hawkins v ... Elston, 58 Colo. 400, 413, 146 P. 254 ... The ... assignments of error ... ...
  • Aaberg v. H. A. Harman Co.
    • United States
    • Colorado Supreme Court
    • December 12, 1960
    ...either to affirm the contract and sue for damages, or to rescind the contract and sue for the return of the money paid. Springhetti v. Hahnewald, 54 Colo. 383, 131 P. 266. The former would be an action in tort (deceit); the latter, an action on contract (assumpsit for money had and received......
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